http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

CASE NO.: Appeal (civil)  2668 of 2002

PETITIONER: Union of India and Ors

RESPONDENT: Rajesh Vyas

DATE OF JUDGMENT: 07/02/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.  2668 OF 2002 (With C.A. No 2669, 2670, 2671 and 2672 of 2002)

Dr. ARIJIT PASAYAT, J.

1.      These five appeals have a common matrix in the  judgment of a Division Bench of the Rajasthan High Court at  Jodhpur dated 26.9.2000. Eight Special Appeals were filed by  the Union of India and Others under Section 18 of the  Rajasthan High Court Ordinance, 1949 (in short the  ’Ordinance’). Challenge in the Special Appeals was to the order  passed by a learned Single Judge of the High Court allowing  the writ petitions filed. It was held that the dispute in writ  petitions was squarely covered in favour of the writ petitioners  by a judgment of this Court in Union of India and Ors. v.  Corporal A.K. Bakshi and Anr. (1996 (3) SCC 65).  The High  Court by the common impugned judgment upheld the view of  the learned Single Judge in four cases and in two cases held  that the appeals filed by the Union of India deserved to be  allowed. In four cases filed by the Union of India before this  Court, the Division Bench upheld the view of the learned  Single Judge and held that the order was passed in clear  violation of the principles of natural justice.  

2.      In the said appeals, stand of the Union of India is that  show cause notice was issued to which reply was furnished by  the respondent in each case and after consideration of the  same, the order of discharge was passed.  

3.      In the two appeals, which were decided in favour of the  Union of India it was held that show cause notice was duly  issued and there was no reply.  Against one such order Civil  Appeal No.2670 of 2002 has been filed.

4.      Learned counsel for the appellant-Union of India  submitted that the original records were produced before the  High Court. They clearly indicate that show cause notice was  issued which fact was not disputed by the respondents. The  fact that each of such respondents had replied is also not  disputed.  It is the stand of the Union of India that both  learned Single Judge and the Division Bench went wrong in  holding that without consideration of the replies the order of  discharge had been passed.

5.      In one of the appeals i.e. Civil Appeal No. 2668 of 2002  learned counsel for the respondents submitted that the order

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

of discharge does not indicate any consideration of the show  cause notice reply. In the other three cases, there is no  appearance on behalf of the respondents.  

6.      In appeal filed by Santosh Singh i.e. Civil Appeal No.  2670 of 2002 the High Court categorically found that show  cause notice was not responded to.      There is no appearance  on behalf of the appellant when the matter was called.

7.      It appears that the Habitual Offenders’ Policy was  formulated as a result of a project study on offences of  ’absence without leave’ and other offences committed by  Airmen made by the Institute of Defence Management, which  brought out the salient features regarding the existence of  habitual offenders amongst Airmen in Indian Air Force. It was  found that there was a specific hard core group of airmen in  the Air Force who have been contributing regularly and  predominantly to the annual offence statistics in the Air Force,  year after year. This group of Airmen have been a strong  source of adverse influence on the general discipline of other  Airmen in the service. Some adverse effects noticed were as  follows: (a)     serious adverse effect and influence on the general  morale and discipline, especially on the young  airmen joining various units from the training  centers.  (b)     Unit level administration was kept pre-occupied  with these chronic in discipline cases impinging on  time which was otherwise required for constructive  activity. (c)     Very often, at some stage or the other, airmen from  this group were found to commit serious offences  not only within but also outside the Air Force,  thereby tarnishing the image of the service, and  (d)     Invariably many of these airmen were not  performing well in their trades also.

8.      Hence, their overall contribution to the service was  negligible. By passage of time, some of these airmen have been  promoted and have attained the ranks of a senior Non- Commissioned Officers’ and thus, such senior staff were very  poor example to others particularly the younger Airmen. Thus,  having regard to the existence of habitual offenders amongst  the airmen and the adverse effects of their repetitive acts of  indiscipline which undermined the general discipline and  administration of the Indian Air Force. Air Head quarters  decided to lay down the Habitual Offenders Policy for  discharging such Airman prescribing the guidelines to deal  firmly with such habitual offenders. In paragraph 4 of the said  policy it was prescribed that those airmen; who met any one of  the following individual criteria were to be treated as habitual  offenders and considered for discharge under Rule 15(2)(g)(ii)  of the Air Force Rules, 1969 (in short the "Rules"): (a)     Total number of punishment entries six  and above (including Red and Black ink  entries);  (b)     Four Red ink punishment entries; and   (c)   Four punishment entries (Red and Black  ink entries includes) for repeated commission  of any one specific type of offence such as dis- obedience, insubordination, AWL, breaking out  of camp, offence involving alcohol, mess  indiscipline, use of abusive/threatening  language.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

9.      That  the red ink entries are for punishment higher in the  scale of the punishment under Section 82 of the Air Force Act,  1982 (in short the ’Act’) while the black ink entries are for  punishment lower in scale in Section 82. The detailed actions  and procedure which were required to be followed to  implement the policy for discharge are given in the appendix to  the policy which was known as the "Procedure for Discharge".  Habitual offenders who were not found suitable for retention  in service were initially placed in two categories, (a) habitual  offenders who have already crossed the criteria as laid down  vide paragraph 4 (a), (b) and (c) of the policy guidelines, and (b)  offenders who are on the threshold. Warning had to be given  as per the procedure to an Airman who was on the threshold  and he was called upon to improve his conduct and behaviour  and that in case he committed any further offence, and came  within the purview of an habitual offender he would be liable  to be discharged. In case he commits any further offence then  would be given a show cause notice and, thereafter discharge  was to be ordered by the competent authority under Rule  15(2)(g)(ii).        

10.     As noted above, policy for discharge of habitual offender  was considered by this Court in A.K. Bakshi’s case (supra).  After analyzing the policy, it was observed that the whole idea  underlying the policy was to weed out the indisciplined  personnel from the force. It was further observed that it was a  discharge simplicitor and as such it cannot be held as  termination of service by way of punishment for misconduct.  

11.     The materials relevant for the consideration of the reply  given by the concerned officials are part of the record. There is  no dispute that the original records were produced before the  High Court. Though in the discharge order there is no specific  reference to the consideration by the appropriate authority, as  a matter of fact the reply in each case was considered. After  due consideration of the reply, the recommendation was that  the AOP may be pleased to approve the discharge of concerned  officials as unsuitable for retention in service. Various officials  considered the matter and the AOP accepted the  recommendation for discharge under Rule 15(2)(g)(ii) of the  Rules.  Thereafter, discharge order was passed where it is  categorically noted that the competent authority i.e. AOP was  pleased to accord the approval of discharge of the concerned  officials from service. In the discharge order it is also stated  that instructions on discharge of a airman as contained in  AFO 291/77, 40/89  and the letter of the Air Force Records  Office dated 28.11.1991 were strictly complied with. Above  being the position, the learned Single Judge and the Division  Bench were wrong in holding that the reply given to the show  cause notice was not considered. The factual scenario is to the  contrary.  

12.     Above being the position, the judgments of the learned  Single Judge and the Division Bench cannot be maintained  and are set aside in each case.     

13.     So far as Civil Appeal No.2670 of 2002 is concerned there  is no appearance on behalf of the appellant when the matter  was called. In fact, he had filed an affidavit in response to the  show cause notice and he had stated that he had no  explanation to offer and that he had no clarification. That  being so, learned Single Judge was not justified in allowing his  writ petition. The Division Bench of the High Court was  justified in allowing the Special Appeal so far as he is  concerned. In his case the order of the High Court needs no

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

interference.  

14.     In the ultimate result, Civil Appeal No.2670 of 2002 is  dismissed while the other appeals are allowed. There shall be  no order as to costs.